The DMCA and SOPA

I’ve been trying to read SOPA, and it’s a pain. Here’s a pdf if you want to give it a shot, maybe you’ll do better than I. I’m hosting it here because I had some inconvenience tracking it down on the Library of Congress site, so I figured I’d save you the trouble.

My trouble reading it is partly the language and partly the way it’s formatted. It’s so nested with paragraphs and subsections and clauses and sub-clauses that when it refers later to a specific clause or subsection you’re not sure which one it means. I think it would benefit from hyperlinks, or perhaps a complete rewrite by someone who knows how to communicate clearly.

I’ll rant about obfuscation in legal texts later, though. (Maybe tomorrow?) Today I want to talk about this claim made at the beginning of the document:

3 (1) FIRST AMENDMENT.—Nothing in this Act
4 shall be construed to impose a prior restraint on free
5 speech or the press protected under the 1st Amend-
6 ment to the Constitution.

It’s probably true that they don’t intend this thing to impede free speech or censor anyone. But should it pass it will be used to do that, and I know this because the DMCA is used this way.

The existence of the DMCA kind of makes me wonder why they’re bothering with this whole SOPA thing. I’m guessing it’s because the of the Viacom-Youtube suit in 2007, when the court ruled that Youtube was safe from prosecution under the “safe harbor” provisions of the DMCA.

Youtube is perhaps the most obvious place where piracy and free speech are closely bound together. It’s a powerful platform to speak your mind from, since your videos can be quickly shared and spread around, and there’s potential for excellent dialogue with video replies and to a lesser extend the comments. It’s also an easy platform to post clips of your favorite scenes from your favorite movies, or even the whole thing. Since the difference between infringement and protected speech is not clear enough to be automated, there’s no practical way to deal with this on a large scale, and everything has to be done on a case-by-case basis.

Here’s where the censorship comes in. Say you have been arguing with someone on Youtube. This is not a friendly argument, nor a civil debate, and you’ve just watched their latest video that really tears your argument apart. You decide that you want them to shut up, and you want that video gone before anyone else sees it. What can you do? You can send a DMCA takedown notice.

Let’s assume that you’re honest enough with yourself to know that you’re committing perjury, so you fill out the form with fake info. You submit it, and Youtube’s automated systems take down their video right away. Youtube has to do this or they’ll lose their safe harbor status and assholes like Viacom will sue the crap out of them. Of course, it’s possible to file a counter-notice. You know that your target’s video was clearly not infringing anything, so a counter-notice would get that video reinstated as quickly as it takes for a real person to actually check it.

So you send them some threats under the name you used on the DMCA notice. Because in order to counter a DMCA takedown, they are required to provide their name and address to their accuser. Now, because takedowns are automated while appeals are not, it’s far more difficult for them to use fake info on their counter, a real person is going to check that, unlike your accusation where the unthinking software acted. You have now forced them to choose between accepting the censorship, and a black mark on their Youtube account, or providing personal info to someone who has given them cause to think that this personal info will be used to hurt them.

This is not hypothetical, it really happens. Thankfully most of the assholes who pull this kind of crap don’t bother much with faking their own info, so it’s not as bad as it could be, but it still puts an undue burden on the falsely accused, and by forcing automated takedowns it effectively treats you as “guilty until proven innocent”.

It’s a bad law.

SOPA is worse. As far as I can tell it takes the same basic approach, but weakens the safe harbor provisions (bye bye, Youtube), attacks anonymous proxy servers as they “can be used to circumvent protections” (so long political dissidents) and kinda generally treats ironclad control of copyright properties as more important than anything else on the ‘net.

I saw a clip of the Daily Show the other day that showed House members repeatedly referring to “nerds”. “I’m not enough of a nerd to understand that”, “Maybe we should get some nerds in here”. John Stewart made a joke about “nerds” meaning “experts”, but it seemed to me that they were saying “nerds” in order to hide the fact that the content of what they were saying boiled down to “I am not competent to discuss this issue in a professional capacity.”

Why introduce a bill on something that you clearly don’t understand, with consequences that you clearly have not thought out? Perhaps I found the answer on Wil Wheaton’s tumblr. Or perhaps it’s some other short-sighted, small-minded petty bullshit, I don’t know. Either way, Chris Dodd is clearly a first-class asshole.

All that’s left for me is to repeat what I said the other day, it’s well worth looking into issues of copyright, and attempting to protect intellectual property, but if the price of a free internet turns out to be piracy, we should pay it gladly. However many millions of dollars might be at stake, if it costs us this marvelous tool for free speech, the most powerful thing humans have ever created, then the price is too high.

About Leo Tarvi

Mostly fictional.

Posted on January 21, 2012, in Daily Post and tagged , , , , , , , . Bookmark the permalink. 4 Comments.

  1. I’m pretty sure under the sopa act, they wouldn’t be able to refer to techs as ‘nerds’ because it infringes on the ‘Revenge of the Nerds’ franchise.

  2. You see? They just haven’t thought it through!

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